Lund v. Myers
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Relatives of Bradford Lund (collectively, Miller) sought the appointment of a guardian and conservator to manage Bradford's assets. Bradford, his father, and his stepfather (collectively, the Lunds) opposed the appointment. Miller's counsel subsequently served a law firm that previously represented Bradford (JS&S) with a subpoena requesting all non-privileged information relating to Bradford. JS&S mistakenly delivered the entire client file to counsel without reviewing it for privileged information. Eventually, the trial court decided to review the documents in camera before ruling on whether each document was privileged. The Supreme Court vacated the trial court's order, holding (1) before reviewing a particular document, a trial court must first determine that an in camera review is necessary to resolve the privilege claim; and (2) the trial court in this case erred by ruling that it would review all the documents to determine whether they were privileged without considering the parties' arguments regarding privilege and waiver to determine whether in camera review was warranted for particular documents before reviewing them. Remanded.
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SUPREME COURT OF ARIZONA En Banc BRADFORD D. LUND, an individual; WILLIAM S. LUND, and SHERRY L. LUND, husband and wife, ) ) ) ) Petitioners, ) ) v. ) ) THE HONORABLE ROBERT D. MYERS, ) JUDGE OF THE SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of Maricopa, ) ) Respondent Judge, ) ) ) MICHELLE A. LUND, DIANE DISNEY ) MILLER, KRISTEN LUND OLSON, and ) KAREN LUND PAGE, ) ) Real Parties in Interest, ) ) __________________________________) ) JENNINGS, STROUSS & SALMON, ) P.L.C., ) ) Intervenor. ) ) __________________________________) Arizona Supreme Court No. CV-12-0349-PR Court of Appeals Division One No. 1 CA-SA 12-0027 Maricopa County Superior Court No. PB2009-002244 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Robert D. Myers, Judge VACATED AND REMANDED ________________________________________________________________ Opinion of the Court of Appeals, Division One 230 Ariz. 445, 286 P.3d 789 (App. 2012) VACATED ________________________________________________________________ JONES, SKELTON & HOCHULI, P.L.C. By A. Melvin McDonald Phoenix And SHUMWAY LAW OFFICES, P.L.C. By Jeff A. Shumway Attorneys for Bradford D. Lund Scottsdale MEYER HENDRICKS, PLLC By Ed F. Hendricks, Jr. Brendan A. Murphy W. Douglas Lowden Attorneys for William S. Lund and Sherry L. Lund Phoenix BURCH & CRACCHIOLO, P.A. Phoenix By Daryl Manhart Bryan F. Murphy Jessica Conaway Attorneys for Michelle A. Lund, Diane Disney Miller, Kristen Lund Olson, and Karen Lund Page JENNINGS, STROUSS & SALMON, P.L.C. Phoenix By John J. Egbert J. Scott Rhodes Attorneys for Jennings, Strouss & Salmon, P.L.C. ________________________________________________________________ B R U T I N E L, Justice ¶1 We address when a trial court, in deciding issues of privilege and waiver, may review in camera allegedly privileged documents that were inadvertently disclosed.1 We hold that before reviewing a particular document, a trial court must first determine that in camera review is necessary to resolve the privilege claim. 1 For ease of reference, we refer to all documents at issue in this case as privileged even though some documents are claimed only to be protected trial-preparation material. 2 I. ¶2 This litigation began Bradford Lund (the parties real in 2009, in when interest relatives in this of case, collectively, Miller ) sought the appointment of a guardian and conservator to manage Bradford s assets. Bradford, his father, and Lunds ) his stepmother (collectively, the opposed the appointment. ¶3 In September 2011, Miller s counsel, Bryan Murphy of Burch & Cracchiolo ( B&C ), served the law firm Jennings, Strouss & Salmon ( JS&S ), which had previously represented Bradford in petitioning for the appointment of a guardian, with a subpoena duces tecum requesting all non-privileged information relating to Bradford. a JS&S Mistakenly believing that Murphy represented Bradford, attorney responded to the subpoena by delivering the entire client file to Murphy without reviewing it for privileged information. ¶4 Early in October, Bradford s attorney, Jeff Shumway, learned that JS&S had given Bradford s file to Murphy. Shumway told Murphy by email that he believed the file contained at least two privileged documents that should be returned. Murphy replied that he would wait to hear from Shumway, who responded he would inform Murphy documents. if further review revealed other privileged After not hearing further from Shumway for three weeks, Murphy distributed the entire file to all other counsel in 3 the case, as well as a court-appointed investigator, as part of Miller s second supplemental disclosure statement. ¶5 On November 14, the Lunds filed a motion to disqualify Murphy and B&C on the ground that they had read, kept, and distributed privileged materials. The next day, JS&S moved to intervene to file a motion to compel Murphy and B&C to comply with the rules applicable to inadvertent disclosure, Ethical Rule 4.4(b) and Arizona Rule of Civil Procedure 26.1(f)(2). ¶6 On November 16, the Lunds filed an emergency motion to prevent Murphy from disclosing the file to the court and for an order that it be returned to JS&S. At a November 29 hearing, the trial court permitted Murphy to retain the file, but directed him to not copy any documents from the file or convey them to anyone. The court also ordered JS&S to create a privilege log, which JS&S filed with the court on December 9. On January 9, 2012, the court granted JS&S s motion to intervene. ¶7 In a January 13 minute entry, the trial court recognized its obligation to determine whether the documents were in fact privileged and directed JS&S to file under seal a detailed explanation of the legal basis for the privilege claim, attached to each allegedly privileged document. Each counsel was to receive a copy of this explanation, including the documents. After allowing the other parties to respond, the court intended to review the documents and counsels arguments before ruling on 4 whether each document was privileged. ¶8 On January 19, the Lunds objected to the trial court reviewing the documents in camera, arguing that Miller must first provide evidence that the documents are not privileged and requesting in the alternative that another judge conduct the review. JS&S moved to extend the deadline for filing the privilege explanations and documents, but the court denied the motion and ordered JS&S to file them on January 31. The court stated it would rule on the Lunds objection to any in camera review before reviewing the documents. The Lunds then filed a petition court for special action with the of appeals and requested a stay of the superior court s orders. ¶9 The court of appeals accepted jurisdiction and granted a stay. Lund v. Myers ex rel. Cnty. of Maricopa, 230 Ariz. 445, 449 ¶ 12, 286 P.3d 789, 793 (App. 2012). The court ultimately held of that although the plain language Rule 26.1(f)(2) seemingly placed no limitations on the receiving party s right to present the inadvertently disclosed documents to the court under seal or on the court s ordering the disclosing party to do the same, such a broad reading would conflict with the receiving party s duty under that rule to return, sequester, or destroy the privileged documents and with Arizona Rule of Civil Procedure 26(g). Id. at 453 ¶¶ 25 26, 286 P.3d at 797. The court reasoned that the receiving party did not have an unqualified right to 5 file privileged information with the court, but could obtain in camera review only after complying with procedural rules and showing that (a) specific documents are likely not privileged or (b) the privilege has been waived. Id. ¶ 27. Finally, the court concluded that if Miller met this threshold, a judicial officer not permanently assigned to the case should conduct the in camera review given the unique circumstances of the case. Id. at 456 ¶ 38, 286 P.3d at 800. ¶10 We granted review to clarify our rules regarding the inadvertent disclosure of privileged information, a legal issue of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶11 When a party has inadvertently disclosed privileged information, Rule 26.1(f)(2) outlines the proper procedure for claiming privilege and resolving any dispute.2 The party who claims is that inadvertently disclosed information privileged should notify any party that received the information of the 2 Arizona Rule of Civil Procedure 45(c)(5)(C)(ii) provides the same procedure for a person who has inadvertently produced privileged documents in response to a subpoena. While A.R.S. § 12-2234 states that an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, the statute does not address inadvertent document disclosure. 6 claim and the basis for it. Ariz. R. Civ. P. 26.1(f)(2). Once the receiving party has been notified of the privilege claim, that party must promptly return, sequester, or destroy the specified information . . . and may not use or disclose the information until the claim is resolved. Civ. P. 26(b)(5)(B). Id.; accord Fed. R. Our rule, like its federal counterpart, is intended merely to place a hold on further use or dissemination of an inadvertently produced document that is subject to a privilege claim until a court resolves its status or the parties agree to an appropriate disposition. Ariz. R. Civ. P. 26.1(f)(2) State Bar committee s note to 2008 amend. ¶12 Ethical Rule 4.4(b) also addresses inadvertent disclosures, providing that a lawyer who receives a document and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender and preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures. Together, these provisions emphasize that a receiving party has a duty to suspend use and disclosure of the allegedly privileged documents until the privilege claim has been resolved either through agreement or court ruling. ¶13 asserting The receiving party may contest the privilege claim by that the documents are not disclosure has waived the privilege. 7 privileged or that the To have the trial court resolve the privilege dispute, the receiving party should promptly present the information to the court under seal for a determination of the claim. Ariz. R. Civ. P. 26.1(f)(2). procedure to allows the court act as a repository for This the documents while the parties litigate the privilege claim. ¶14 Unlike the court of appeals, we do not find that a receiving party who presents the information under seal to the court thereby violates Rule 26.1(f)(2) by using the information and failing to return, sequester, or destroy it. Ariz. at 453 ¶ 26, 286 P.3d at 797. See Lund, 230 The prohibition in Rule 26.1(f)(2) on the use of the documents does not preclude filing the documents with the court under seal or other conduct allowed by the rules. committee s note See to Fed. 2006 R. Civ. amend. P. 26(b)(5)(B) (stating that the advisory receiving party may not use the information pending resolution of the privilege claim, but that it may present to the court the questions of privilege and waiver). Counsel may sequester the documents, including filing them under seal; make good faith efforts to resolve the issue with opposing counsel, see Ariz. R. Civ. P. 26(g); and, resolution of the issue. if necessary, move for the court s Although each of these actions involve a literal use of the documents, Rule 26.1(f)(2) contemplates that the privilege claim may be resolved through such use. ¶15 If the allegedly privileged documents are filed under 8 seal with the trial court, the court may not view the documents until it has determined, as to each document, that in camera review is necessary to resolve the privilege claim. Such review may be required if the receiving party makes a factual showing to support a reasonable, good faith belief that the document is not privileged. Cf. United States v. Zolin, 491 U.S. 554, 572 (1989) (requiring a threshold showing to be made before the court could perform in camera review to determine whether the crime-fraud exception to the privilege applies); Kline v. Kline, 221 Ariz. 564, 573 ¶ 35, 212 P.3d 902, 911 (App. 2009) (holding that a party must present prima facie evidence to invoke the crime-fraud exception). Any documents found to be non-privileged may be used in the litigation and any documents determined to be privileged must be returned to the disclosing party or destroyed. ¶16 If the receiving party does not contest the disclosing party s claim of privilege, the court need not determine the privilege issue or review the undisputedly privileged documents filed under seal. See Fed. R. Civ. P. 26(b)(5)(B) advisory committee s note to 2006 amend. The receiving party in this situation must either return or destroy the documents and any copies. ¶17 Ariz. R. Civ. P. 26.1(f)(2). With these principles in mind, we consider whether the trial court in this case abused its discretion in its rulings regarding the disputed documents. 9 See State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 57 ¶ 12, 13 P.3d 1169, 1174 (2000) (noting that discovery rulings relating to privilege are reviewed for abuse of discretion). motion to disqualify is based Here, because the Lunds on Murphy s disclosure of allegedly privileged materials in violation of Rule 26.1(f)(2), the trial court must determine whether the documents are indeed privileged. produce a To that end, the court properly ordered JS&S to privilege log and Miller and Bradford to file a response. ¶18 review The trial court, however, erred by ruling that it would all privileged. the documents to determine whether they are The court should have awaited the responses to the privilege log and considered the parties arguments regarding privilege and waiver to determine whether in camera review was warranted for particular documents before reviewing them. ¶19 If in camera review is needed, the trial judge should consider whether another judicial officer should conduct the review in light of the possibility that a review of privileged materials may be so prejudicial as to require the judge s recusal. If the trial judge conducts an in camera review and upholds the privilege claim, the judge should consider whether recusal is then necessary, see Ariz. Code of Judicial Conduct Rule 2.11, and a party who can show actual bias may, of course, move for the judge s removal for cause, see Ariz. R. Civ. P. 10 42(f)(2); see also A.R.S. § 12-409(B). ¶20 After the trial court rules on the privilege and waiver issues, the court shall consider the pending motion to disqualify Murphy and B&C. Miller has not yet responded to that motion, and we decline to comment on its merits or on the related issue whether, by seeking attorney-client disqualification, privilege. These Bradford issues waived are the appropriately determined by the trial court in the first instance. III. ¶21 For the foregoing reasons, we vacate the court of appeals opinion and the trial court s January 13, 2012 order and remand to the trial court for proceedings consistent with this opinion. __________________________________ Robert M. Brutinel, Justice CONCURRING: __________________________________ Rebecca White Berch, Chief Justice __________________________________ Scott Bales, Vice Chief Justice __________________________________ John Pelander, Justice __________________________________ Ann A. Scott Timmer, Justice 11
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